A legal hold is a process which an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated. The legal hold is generally initiated by notice or communication from legal counsel to an organization and causes a suspension of the normal disposition or processing of records. An administrator, such as an information technology (IT) administrator, may identify custodians and mailboxes to hold in response to a legal hold notice. A custodian is a person or entity that owns or controls access to a set of electronic documents. A custodian can be any person who has read and write access to electronically stored information (ESI) during the course of normal operational activity. The administrator should notify custodians of the legal hold and disseminate the legal hold notice to the custodians as quickly as possible. In addition, the administrator needs to keep track of the custodians that have responded to the legal hold notice.
Moreover, the legal hold notice process should be defensible and auditable. In order for the legal hold notice process to be defensible and auditable, an organization should be able to show that it complied with and distributed the legal hold notice to all custodians. If the organization cannot show compliance, legal sanctions can ensure, such as fines or losing the litigation in court. However, the information involved in the legal hold notice process, and usually all e-discovery information, generally includes sensitive and/or confidential data. This information must be secured and kept confidential. Therefore, although an organization may be required to show compliance with the legal hold notice, the organization does not want to disseminate any of the sensitive or confidential information involved in the legal hold.
Currently, most organizations have a manual notification and tracking process (such as Excel spreadsheets), with one or more people (such as the administrator) sending the legal hold notice, keeping track of who has been sent the legal hold notice, and keeping track of who has responded to the legal hold notice. This manual process may be sufficient if there are few custodians to notify. However, it is not scalable, such as when a legal hold notice involves a large number (e.g., thousands) of custodians. It is very difficult and/or tedious to manage the manual process, and mistakes may be made. Moreover, the manual process is very difficult to audit or defend.
Another current approach is to use a single system that creates an electronic message, sends it to the appropriate recipients, and tracks their responses. However, this system may not be able track whether the notices were received. The use of email receipts can be used, but there is no guarantee that a recipient will send back an email receipt. Furthermore, if a response beyond a simple acknowledgement is required (e.g., answers to questions regarding the legal hold notice), an email receipt will not allow a recipient to provide this type of response. Another option is to ask the recipient to respond to the administrator that they received the notice. This is infeasible if the administrator has to keep track of thousands of messages from thousands of recipients.
Another option is to provide a web server for a recipient to respond to the legal hold notice. The web server can allow for tracking of messages and provide real-time updates with the responses of the recipients. However, use of a web server would introduce security issues, as every recipient (e.g., thousands of recipients) would have access to the web server, which contains sensitive or confidential information. Furthermore, the web server could be used for other purposes and may not have enough computational resources to handle the legal hold notice process.